This excerpt taken from the CNX 8-K filed Sep 11, 2009.
Actuarial Equivalent means the actuarial present value of a specified benefit as determined on an applicable date using the mortality, interest rate and other assumptions as defined in the Qualified Plan.
Annual Compensation means annual base salary plus amounts received under the Companys Short Term Incentive Compensation Plan, the CNX Gas Corporation Short-Term Incentive Compensation Plan or any executive Short Term Incentive Plan (as and if applicable). All other forms of remuneration are excluded, including but not limited to all long-term incentive compensation, bonuses, fringe benefits and stock-based awards.
Beneficiary means the person or persons designated by a Participant as his beneficiary hereunder in accordance with the provisions of Article V.
Board means the Board of Directors of the Company.
Cause means (i) a charge, indictment or conviction of, or a plea of guilty or nolo contendere to, a misdemeanor involving moral turpitude or a felony, whether or not in connection with the performance by a Participant of his or her duties or obligations to the Company or any Subsidiary; (ii) theft relating to the business of the Company or any Subsidiary or dishonesty with respect to a material aspect of the business of the Company or any Subsidiary; (iii) gross negligence or willful misconduct in the performance of the Participants duties or obligations to the Company or any Subsidiary, or engaging in illegal activity in connection therewith, including, without limitation, a Participants engagement in any act or course of conduct that would result in the termination or revocation of, or jeopardize the renewal of, any licenses, permits, consents, authorization, approvals or material agreements necessary for the Company or any Subsidiary to conduct its business or that would have an adverse effect on the Company or any Subsidiary; (iv) violation of any provision of any nonsolicitation, noncompetition or nondisclosure contained in any agreement entered into by and between a Participant and the Company and/or any Subsidiary; or (v) cause as defined in the Participants employment and/or change of control agreement, if any, with the Company or any Subsidiary. The determination as to whether or not Cause exists will be made by the Retirement Board and the CEO of the Company (CEO) in accordance with its discretionary powers under Section 1.3; provided, however, that the Board shall make the determination as to whether or not Cause exists with respect to the CEO. The Retirement Board and the CEO shall periodically report to the Board as to its determinations, if any, with respect to determinations of Cause.
Change in Control means the occurrence of any of the following events:
(i) the acquisition after the date hereof by any individual, entity or group (within the meaning of section 13(d)(3) or
(ii) individuals who constitute the Board as of the Effective Date (the Incumbent Board, as modified by this subsection (ii)), cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a Director subsequent to such date whose election, or nomination for election by the Companys stockholders, was approved by a vote of at least two-thirds of the Directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) will be deemed to have then been a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(iii) consummation of a reorganization, merger or consolidation of the Company or a direct or indirect wholly owned subsidiary thereof, a sale or other disposition (whether by sale, taxable or nontaxable exchange, formation of a joint venture or otherwise) of all or substantially all of the assets of the Company, or other transaction involving the Company (each, a Business Combination), unless, in each case, immediately following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners of voting stock of the Company immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding shares of voting stock of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Companys assets either directly or through one or more subsidiaries), (B) no Person other than the Company beneficially owns 25% or more of the combined voting power of the then outstanding shares of voting stock of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof (disregarding all acquisitions described in clauses (A) - (C) of subsection (i)), and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Combination or any direct or indirect parent corporation thereof were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or (iv) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company, except pursuant to a Business Combination that complies with clauses (A), (B) and (C) of subsection (iii).
Notwithstanding the foregoing or any provision of this Agreement to the contrary, it is intended that the forgoing definition of Change in Control qualify as a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation, within the meaning of Treas. Reg. § 1.409A-3(i)(5), and this Agreement shall be interpreted and construed to effectuate such intent.
Code means the Internal Revenue Code of 1986, as amended, and any successor code or law.
Committee means the Compensation Committee of the Board, or such other committee designated by the Board to discharge the duties of the Committee hereunder.
Company means CONSOL Energy Inc. or any successor thereto.
Disability means a Participant: (1) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to last for a continuous period of not less than 12 months; or (2) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan of the Company or its Subsidiaries.
Final Average Compensation means, subject to Section 1.4(c), the average of a Participants five highest consecutive Annual Compensation amounts while employed by the Company and its Subsidiaries.
Normal Retirement Date means the date such Participant attains age sixty five (65).
Participant means any employee who has satisfied the eligibility requirements set forth in Section 1.4 of the Plan.
Person means any individual, corporation, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Plan Year means the twelve-month period beginning each January 1 and ending on the following December 31.
Qualified Plan means CONSOL Energy Inc. Employee Retirement Plan, as amended, the CNX Gas Corporation Employee Retirement Plan and/or such other plan(s) as designated by the Retirement Board.
Section 409A shall mean Section 409A of the Code, the regulations and other binding guidance promulgated thereunder.
Separation From Service shall mean a Participants death, retirement or other termination of employment with the Company and all of its controlled group members within the meaning of Section 409A of the Code. For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that the language at least 50 percent shall be used instead of at least 80 percent in each place it appears in Section 1563(a)(1),(2) and (3) of the Code and Treas. Reg. § 1.414(c)-2; provided, further, where legitimate business reasons exist (within the meaning of Treas. Reg. § 1.409A-1(h)(3)), the language at least 20 percent shall be used instead of at least 80 percent in each place it appears. Whether a Participant has a Separation from Service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A.
Service Fraction means the fraction determined hereunder with a numerator that is the Participants number of full Years of Service and with a denominator of 20. The Service Fraction can never exceed one (1).
Specified Employee means a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company and its Subsidiaries, as defined in the regulations issued under Code Section 409A, as determined in accordance with the procedures established by the Company.
Subsidiary means, unless specifically excluded by the Committee, any entity in which the Company owns or otherwise controls, directly or indirectly, stock or other ownership interests having the voting power to elect a majority of the board of directors, or other governing group having functions similar to a board of directors, as determined by the Committee. For purposes of this Plan, CNX Gas Corporation or any of its subsidiaries shall be considered to be a Subsidiary as follows: (i) if a Participant is employed by the Company or CNX Gas Corporation on or after September 8, 2009, CNX Gas Corporation shall be a Subsidiary with respect to such Participant for all purposes under this Plan, such that, for example, the Participants Annual Compensation and Years of Service will include service with CNX Gas Corporation both before and after said September 8, 2009 date; and (ii) if a Participant was not employed by the Company or CNX Gas Corporation on or after September 8, 2009, CNX Gas Corporation shall not be a Subsidiary with respect to such Participant for all purposes under this Plan, such that, for example, the Participants Annual Compensation and Years of Service will exclude all service with CNX Gas Corporation. An entity shall be considered to be a Subsidiary only for the period of time in which the ownership test and the Committee approval set forth above have been met.
Year of Service means, subject to Section 1.4(c), each full twelve-month period of active, full-time employment with the Company following the Participants most recent hire date, as determined pursuant to the Companys regular personnel records and policies. The Committee may, but is not required to, recognize employment with prior employers for purposes of this Plan. Any such recognition shall be in writing and shall state the purposes for which service will be recognized under this Plan. In addition, the Plan will (i) recognize service for periods of prior employment with the Company; (ii) recognize periods of service with CNX Gas Corporation in accordance with the rules set forth in the definition of Subsidiary for CNX Gas Corporation; and (iii) recognize periods of employment with any other Subsidiary, but only for periods of time while that entity meets the definition of Subsidiary (e.g. is owned by the Company).
This excerpt taken from the CNX 10-Q filed Apr 30, 2008.
The following terms shall have the meanings set forth in this article, unless a different meaning is plainly required by the context;
Account means the book entry account established and maintained for each Participant under Section 3.1.
Administrator means a committee of two or more persons selected to serve by the Board. If no such committee exists, then the Administrator means the Board.
Affiliate means any parent corporation (within the meaning of Code § 424(e)) or subsidiary corporation (within the meaning of Code § 424(f)), or any entity that is controlled directly or indirectly by the Company, or that the Company has a significant equity interest.
Beneficiary means an individual, trust or other entity entitled to receive payment on account of a Participants death.
Board means the board of directors of CONSOL Energy Inc.
Code means the Internal Revenue Code of 1986, as amended.
Company means CONSOL Energy Inc.
Deferral means the amount or percentage to be withheld from an Eligible Directors Fee, pursuant to a Deferral Election.
Deferral Election means an Eligible Directors election to defer all or a portion of his or her Fee under the Plan on the form and in the manner prescribed by the Administrator and as may be required under the Plan. No Deferral Election shall be effective with respect to any Fee payable while the Participant is not an Eligible Director.
Earnings means the amount credited to a Participants Account each quarter under Section 3.2.
Eligible Director means a member of the Board, and who is selected by the Administrator, in its sole discretion, as eligible to participant in the Plan and notified of such in writing.
Fee means any fee, such as the annual retainer, meeting fees or other amounts earned by the Eligible Director during the Plan Year for services performed as a member of the Board, and that is paid in cash to the Eligible Director, or would be paid but for a Deferral Election.
Participant means an individual for whom either (i) a Deferral Election is in effect or (ii) an Account exists (including a Beneficiary when appropriate in the context).
Plan means the CONSOL Energy Inc. Directors Deferred Compensation Plan as set forth herein, as it may be amended from time to time.
Plan Year means the one-year period between the annual stockholders meeting and the next following annual stockholders meeting.
Section 409A shall mean Section 409A of the Code, the regulations and other binding guidance promulgated thereunder.
Separation from Service shall mean the Directors death, retirement or other termination of service with the Company and all of its controlled group members within the meaning of Section 409A. For purposes hereof, the determination of controlled group members shall be made pursuant to the provisions of Section 414(b) and 414(c) of the Code; provided that the language at least 50 percent shall be used instead of at least 80 percent in each place it appears in Section 1563(a)(1),(2) and (3) of the Code and Treas. Reg. § 1.414(c)-2; provided, further, where legitimate business reasons exist (within the meaning of Treas. Reg. § 1.409A-1(h)(3)), the language at least 20 percent shall be used instead of at least 80 percent in each place it appears. Whether the Director has a Separation from Service will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A.
Trust means the legal entity created by the Trust Agreement.
Trust Agreement means the trust instrument entered into between the Company and a trustee, as it may be amended from time to time.
Unforeseeable Emergency means a severe financial hardship resulting from one of the following: an illness or accident of the Director, his or her spouse, beneficiary or dependent (as defined in § 152(a) of the Code, without regard to Section 152(b)(1), (b)(2) and (d)(1)(B)); the need to pay for the funeral expenses of a spouse, beneficiary or dependent (as defined above); loss of the Directors property due to casualty; or other similar extraordinary and unforeseeable circumstances arising from events beyond the Directors control.
IN WITNESS WHEREOF, CONSOL Energy, Inc., has caused this Plan to be executed by a duly authorized officer effective as of March 20, 2008.